Should SCOTUS Justices Use The Word ‘Alien’ In Considering How Arizona’s Immigration Law Impacts Citizens?

April 26, 2012

There were two notable things that jumped out at us yesterday as the Obama administration challenged Arizona’s controversial immigration law SB 1070 before the Supreme Court.

First of all, who the hell in the Obama administration let Solicitor General Donald Verrilli anywhere near the Supreme Court again? Last month Verrilli argued (if you can even call it that) the Affordable Care Act before the high court and got his clock cleaned by a far more polished, ready and able attorney, Paul Clement. When Arizona hired Clement to argue the constitutionality of SB 1070 before the Supremes, the administration would have been wise to find somebody — anybody, really — to argue their case other than Verrilli.

Justice Sonia Sotomayor, the only Hispanic on the high court, took a very active role in the arguments, jumping in with the first question for Arizona’s lawyer, Paul Clement, and openly criticizing Solicitor General Donald Verrilli Jr. when she thought his arguments went off course.

Sotomayor — presumably a justice who will not vote for SB 1070, also chastised Verrilli this way:

“I’m terribly confused by your answer. OK? And I don’t know that you’re focusing in on what my colleagues are trying to get to,” she said.

But maybe she lost her patience most with this:

“You can see it’s not selling very well. Why don’t you try to come up with something else?” she said.

After the choice of the lawyers, the second thing that jumped out at us was this quote from Justice Anthony Kennedy, as reported by Politico:

Justices Anthony Kennedy and Samuel Alito also appeared troubled by the law’s provision instructing local law enforcement to detain someone until their immigration status is confirmed.

“If it takes two weeks to make that determination, can the alien be held by the state for that whole period of time?” Kennedy asked.

The alien. There is always a debate about what to call people who are in this country “without papers”: Illegal aliens? Illegal immigrants? Undocumented immigrants?

Personally, we always thought aliens looked more like like what you’d see in a James Cameron film. But let’s put that debate aside for a second and consider this: is the word alien really appropriate for a Supreme Court justice to be discussing here, because the person in question might not be an “alien” at all?

Let’s walk this back a bit. Kennedy is asking about the detention of someone a law enforcement officer thinks may be in the country illegally. He is wondering how long that person can be held in custody until the determination is made whether they are in the country legally, or not. But the person in question might not be an “alien” at all — the person might well be a citizen!

Why is a sitting justice of the Supreme Court assuming anyone picked up is an “alien,” and therefore not an innocent citizen until proven otherwise guilty? Kennedy’s language shows a disturbing assumption on his part of who will be picked up under SB 1070 (should it go into full effect), and it totally ignores the reality that racial profiling will play a large role in determining who the “alien” will probably be who is waiting for verification of citizenship if he or she doesn’t have his papers on him.

And yes, we understand the point of SB 1070 is that you have to have your papers on you; but if if you don’t as a citizen, you could be punished, but it wouldn’t automatically make you an “alien” stripped of your citizenship. Plus, we can only imagine that certain types of people will be subjected to this law. (And, this is even more disturbing when you consider that the Supreme Court ruled just last month that police can arrest you and look up your bunghole, even when you have the proper papers on you proving you shouldn’t have been erroneously arrested in the first place.)

But then again, who can blame Kennedy for ignoring the racial profiling aspect? As Color Lines pointed out, the Obama administration itself has taken an “avoid race at all costs,” color blind approach to challenging SB1070 — a mistake that may prove as foolhardy as letting Verrilli be their advocate.